As part of its approved race-conscious policy, Caltrans requires
prime contractors to favor subcontractors who are African American,
Asian-Pacific American, Hispanic American, Native American, and women.
But prime contractors may not give preferences to male subcontractors
who are Subcontinent Asian American, or white. Subcontinent Asian
Americans include persons whose origins are from India, Pakistan,
Bangladesh, Bhutan, the Maldives Islands, Nepal, and Sri Lanka.

The peculiar decision by Caltrans to favor, say, Chinese Americans
over Bangladeshi Americans, or Burmese (Myanmar) Americans over
Bhutanese Americans, is based on a disparity study
performed last year at Caltrans’ behest. That study combined all data
from 2007-2010 state and local prime contracts with data from all
subcontracts, including contracts from the transportation construction
and engineering industries.

The massed contracting data showed
statistical disparities from 2009-2010 that were substantial for firms
owned by African Americans, Asian-Pacific Americans, Hispanic Americans,
Native Americans, and white women. Caltrans chose not to rely on the
full data from 2007-2010 showing no disparities for white women.

Although Caltrans has never disbarred a single prime contractor for
engaging in discriminatory conduct (or even accused any), Caltrans
assumes that the statistical disparities are proof of intentional
discrimination occurring industry-wide. To remedy this supposed
discrimination, Caltrans imposes a one-size-fits-all racial preference
for all federally assisted transportation construction and engineering
projects.

As I noted in an earlier post, Caltrans’ attempt to enforce one preference statewide fails the constitutional requirement for narrow tailoring. In yet another post, I discussed why it is wrong for Caltrans to mix prime contracting data with subcontracting data.

Caltrans’ new DBE program is intended to remedy combined statistical
disparities, but the result is state-mandated discrimination.

For
instance, on engineering subcontracts, prime contractors must give
preferences to engineers who are Asian-Pacific American and Hispanic
American. But the disparity study showed there were no disparities for
engineers from these racial groups on engineering subcontracts. On the
other hand, there were substantial disparities for Subcontinent Asian
American engineers, who receive no preferences.

On construction
subcontracts, the disparity study reveals no substantial disparities for
white women, or Hispanic or Native American contractors – in other
words, no inferences of discrimination against these groups. But they
all continue to receive preferences on construction subcontracts. This
means that if intentional discrimination is truly the cause of the
disparities for African American contractors, the Caltrans DBE program
offers a “business as usual” approach with no remedy. Racist prime
contractors, if any exist, may continue to discriminate against African
American contractors while meeting the program’s race-conscious goals at
the same time!

Pitting minority group against minority group, and dividing certain
minority groups by sex, but not others, is the result of Caltrans’ twin
untenable assumptions that statistical disparities alone can prove
discrimination, and that such disparities can be “remedied” by aggregate
preferences. The Caltrans requirement that prime contractors treat
businesses differently based upon the owner’s skin color or sex is
discrimination in violation of the Equal Protection Clause.Source: Pacific Legal Foundation/Ralph Kasarda

1 comment:

Discrimination is still discrimination no matter what color or gender it happens to be. What ever happened to hiring the most qualified no matter what race or gender? Have we really gone back to the days of quotas?